Beruflich Dokumente
Kultur Dokumente
FC 63(3); FC 213
Art. 63. The decree of legal separation shall have the following effects:
(3) The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code
FACTS: Armando Medel filed an action for legal separation against Rosario
Matute, upon the ground of adultery committed with his brother and her
brother-in-law, Ernesto Medel. The decision of the court, on November 6,
1952, found Rosario guilty of the charge against her, decreed said legal
separation, and awarded to Armando the custody of their four (4) minor
children. During the summer vacation of the children, they joined their father
in Cebu. With his permission, Rosario brought the children to Manila in April,
1955, to attend the funeral of her father. Armando alleges that he consented
thereto on condition that she would return the children to him within two (2)
weeks. However, Rosario did not do so. Instead, she filed a motion praying
for the awarding the custody of her children and Armando be obligated to
support the children in their studies and give them a monthly allowance. It
was alleged that three of the children did not want to live with their father
because he is already living with a woman other than their mother.
Armando opposed this motion and countered with a petition to declare and
punish Rosario for contempt of court, because of her failure and alleged
refusal to restore the custody of their children to him.
On June 29, 1955, CFI Manila, presided over by Respondent Judge Macadaeg,
issued an order absolving Rosario from the charge of contempt of court as
she secured Armando's consent before bringing the children to Manila. On
the other hand, the Court denied her motion for the custody of the children
and ordering her to deliver them to Armando within twenty-four hours from
notice.
Again, it is conceded that children over ten (10) years of age, whose parents
are divorced or living separately, may choose which parent they prefer to
live with, unless the parent chosen is unt to take charge of their care by
reason of "moral depravity, habitual drunkenness, incapacity or poverty"
(Rule 100, section 6, Rules of Court). Without deciding whether the adultery
committed by herein petitioner with her own brother-in-law involves moral
depravity, it is clear to our mind that the afrmative assumption implicit in
the order complained of cannot be characterized as an "abuse of discretion",
much less a "grave" one.
Lastly, said order further declares: the facts remains that defendant-movant
is without means of livelihood and, according to her own admission, she lives
on the charity of her brothers. She has no home of her own to offer to her
children, but only she would shelter them under the roof of her brothers."